US position at WIPO on "the Nature of the Instrument" for copyright exceptions for disabilities

At WIPO SCCR 24, the negotiations on the text of an "instrument" on copyright exceptions for persons with disabilities appear to be going well. For the past year, the delegates have been close on the substantive issues, focusing on a handful of important nuances in the ways that beneficiaries of the agreement are defined, the types of works and rights covered, wording on safeguards, provisions for developing countries, and other technical issues such as the relationship to the Berne and TRIPS three step test. (For discussions of substantive issues, see: http://keionline.org/r2r) While these issues are important and the negotiations are sometimes challenging, all delegations have worked hard to find solutions, and none of the outstanding differences are so large that they cannot be resolved in a diplomatic conference to finish the text. However, as one delegate put it in the corridor, the elephant in the room is the debate over the "nature of the instrument."

Most of the world is now ready to call for a diplomatic conference to complete work on a treaty. But the United States and the European Commission are still unwilling to do so. The European Union situation is an interesting issue, that David Hammerstein from TACD and the World Blind Union struggle with every day. European Union policy is set by a combination of the European Parliament, the Commission and the Council. The European Parliament, which has held countless hearings and votes on the issue, has been particularly strong in support of a treaty. Many governments in the European Union are now openly in favor of the treaty approach. For example, Spain, Sweden, Finland, the UK and other countries have at various times indicated they would support a treaty.

In several meetings, including this one, the Asia Group, the Africa Group, and GRULAC (the Latin American countries) have called for a treaty. China has called for a treaty. And several non-EU high income countries have openly supported a treaty, including Switzerland, Australia, and Singapore.

What is missing from the debate this week is the United States position on this issue. In the early part of 2009, Maria Pallante spoke on behalf of the United States, and said the U.S. view was that a treaty was "premature." But by the end of 2009, White House aides Susan Crawford, Andrew McLaughlin and Kareem Dale, and USPTO official Arti Rai intervened, and moved the United States from open opposition to a treaty to a position of being open to a treaty, or some other approach. Since then, Crawford, McLaughlin and Rai have all left the government, and Kareem Dale has been lobbied by USPTO to abandon support for a treaty in favor of a "recommendation" to the General Assembly of WIPO that countries implement some model provisions. The softer, non-binding recommendation approach is considered a disaster by disabilities groups, who see the Obama Administration seeking an exit without delivering any real benefits to blind and other persons with disabilities.

Over the past year, the US position has seems to have shifted back toward a more open view on the treaty approach, but still, the United States is blocking an agreement that the "nature of the instrument" will be a treaty. This is now becoming a huge issue, because a diplomatic conference can only be called once a year, by the WIPO Geneva Assembly meeting in September or October, and this is the last SCCR meeting for Obama's first term in office. If we miss the 2012 WIPO General Assembly, a diplomatic conference will not be held until 2014, at the earliest -- during which time all sorts of things can go wrong, and many of the delegates now working on the issue will have moved on, making it more challenging to finish the work.

The first call at WIPO for a treaty took place in 1985, when Wanda Noel highlighted the need to have a treaty focusing on cross border exchanges of works. There is a great opportunity to finish this now, but four years of work is at risk if the Obama White House won't back a treaty this week.

What's up with the White House? To understand the position of the United States, listen to last week's interview with Alan Adler of the Association of American Publishers (here). What Adler is saying is that his membership opposes a treaty, not because of what the treaty would do in the context of persons with disabilities, but because it would set a precedent that a copyright treaty could focus on the rights of users rather than copyright owners, and that precedent can spread to other areas, where publishers have a real economic interest, such as the education and library markets. This is basically the Obama position for the past three years -- to push disabilities groups to accept some lesser non-binding recommendation, rather than a treaty.

Right now the United States delegate will only say that the issue is being reviewed within the government. The three major decision makers on this issue are Maria Pallante of the United States Copyright Office, Ambassador Ron Kirk who serves as head of USTR in the White House, and David Kappos at USPTO. Most people believe USTR has been a problem, and we are told that Pallante (who earlier supported PIPA/SOPA) has yet to support a treaty. David Kappos is the lead agency on this, and if he wanted a treaty, we would have an agreement at WIPO by Wednesday to recommend a diplomatic conference for to take place 2013.

In the United States Congress, there have been no hearings and little interest in the issue. Senator Harkin, who Chairs the Senate HELP Committee and has jurisdiction over disabilities issue wrote a strong letter in support of the treaty approach: http://keionline.org/node/1397. Senator Leahy chairs the Judiciary committee, which has jurisdiction over copyright law. Like Pallante, he supported PIPA/SOPA. When we meet with Senator Leahy's office, we were told he was opposed to a treaty -- because it would require the United States to amend its law, to permit the export of accessible copies of copyright works to blind people in other countries -- something now illegal under US law.

Over the weekend, a frustrated Chris Friend of the World Blind Union issued this direct appeal to President Obama:

Within the copyright owner lobby community, there was once near universal opposition to a treaty, but this has changed, particularly following an appearance by Stevie Wonder at the WIPO General Assembly in 2010. Today the MPAA and the RIAA both back a treaty on copyright exceptions for persons who are blind or visually impaired, the even the Geneva based International Publishers Association have indicated support for resolving this as a treaty. The major opponents to making this a treaty are the large publishing conglomerates, such as McGraw-Hill, John Wiley & Sons, the German owned Random House, the UK owned Pearson and the French owned Lagardère, all of whom wield considerable power in the Association of American Publishers -- a group with a high profile present in the Geneva negotiations this week.

Meanwhile, on the 18th, USPTO backed a "treaty" for broadcasters, on a topic for which is almost no agreement on any of the outstanding issues. See: http://keionline.org/node/1483. Also, to put things into context, the United States backed ACTA as a binding agreement, even before any text was tabled, and backs binding language for countless intellectual property rights and enforcement trade agreements, such as the new TPP trade agreement - also before text is even tabled in the negotiations.